I‘ve never considered myself a single-issue voter. In fact, I’ve always despised the idea that someone would choose a candidate based on a single issue – especially if it was a wedge issue unlikely to be a major concern for a politician.
That said, it was difficult when I realized that on the issue I write most about, campus sexual assault, Socialist (excuse me, Independent) Vermont Sen. Bernie Sanders was more in line with my views than Republican Sen. Marco Rubio.
On Monday, Sanders told an audience at the Black and Brown Presidential Forum in Iowa that rape accusations on college campuses should be handled by law enforcement and not administrative bureaucracies, a sentiment I share. “Rape and assault is rape or assault whether it takes place on a campus or a dark street,” Sanders said. “If a student rapes another student it has got to be understood as a very serious crime, it has to get outside of the school and have a police investigation and that has to take place.”
I agree. Rape and sexual assault are serious crimes, and letting untrained or poorly trained administrators adjudicate them as mere disciplinary matters is dangerous for society. That’s because the worst a school can do to a rapist is expel him, leaving him free to prey on anyone off-campus – including the original victim, should he or she leave the grounds.
At the same time, schools provide no meaningful due process for accused students, allowing their names to be dragged through the mud without evidence and without a chance to defend themselves. This has led to more than 70 lawsuits by accused students who were not allowed to present evidence in their defense or be represented by a lawyer, and now have their lives on hold by an accusation they say is false.
In short, colleges and universities have set up kangaroo court systems that encourage and reward false accusations, because the schools are afraid of losing federal funding due to the threat of a Title IX investigation. In 2011, Title IX, which bans discrimination on the basis of sex, was reinterpreted by the Education Department (without going through the proper process) to claim that sexual assault, unlike any other crime, is a civil rights issue and that colleges must set up pseudo-courts to punish students.
The thinking from activists is that sexual assault between students hampers the victim’s ability to learn and that schools have a duty to ensure this doesn’t happen. Nothing in the language of Title IX says anything of the sort, but that is the way it is currently being interpreted. And schools that do not comply risk an investigation – which has always resulted in a violation finding – and a loss of funding.
And through all of this, sexual assault is treated as no worse than cheating or plagiarism. Activists say the pseudo-court system is needed because police have been unwilling or unable to investigate accusations in the past, and so instead of reforming the legal system, a whole new system must be created, one that denies the accused their constitutional rights to due process.
Due process, in their eyes, is an impediment to justice, at least when the accusation is sexual assault.
Sanders’ statement that police need to be put back in charge of what are actually felonies is welcome. And his statement is more in line with my work and my beliefs than those of Republican presidential candidate Marco Rubio.
Rubio is the only GOP candidate that has seemingly taken a stance on this issue – and it is a bad one. He has co-sponsored a bill that codifies into law the overreach of the Education Department and ensures that accused students will not have a fair hearing. After the Campus Accountability and Safety Act was introduced in 2014, I sent questions to the sponsors of the bill asking about due process protections for accused students.
Rubio’s office was one of the few that responded. His spokesman told me: “This bill does not address this issue” when asked about due process.
Activists like to claim that false accusations are rare. We don’t know how rare they are. Reporting to the police is different than reporting to a university official who won’t do anything to punish a lie and is being pressured to find in favor of the accuser rather than seek the truth. And studies that show false reports are low are only referring to reports that are proven false. An equally small number could be considered proven true by way of a conviction. Even then, the number one crime where DNA evidence finds a convicted person was innocent is in cases of rape.
Everything in between can’t likely be proven true or false. But colleges are now required to use a lower standard of proof, a “preponderance of evidence,” to determine if an accused student is responsible. This standard means administrators have to be just 50.01 percent sure that an assault happened, meaning they can be 49.99 percent sure it didn’t happen and still severely limit or ruin a student’s life by expelling them.
It is these practices that have led Harvard Law professors and University of Pennsylvania law professors, as well as the former president of the American Civil Liberties Union, to denounce the policies that Rubio has signed on to.
Sanders’ other policy proposals are terrible, while many of Rubio’s proposals are acceptable. But I can’t on good conscience look the other way when his stance on campus sexual assault appears to go against my life’s work.
In a statement from Rubio’s press secretary Brooke Sammon, I was told that the Florida senator signed on to the bill in order to make it better.
“Marco is committed to improving the handling of sexual assault on college campuses while protecting the rights of the accused,” Sammon wrote. “The CASA bill, which is supported by conservatives like Joni Ernst and Chuck Grassley, is not perfect, but it’s a starting point for debate and Republicans were able to keep out multiple priorities sought by liberal Democrats in drafting the bill.”
“Sexual assault should not be a partisan issue, and as president, Marco will end the status quo for the millions of students and their families who’ve put their trust in universities and law enforcement,” she added. “As part of those efforts, he will prioritize stopping the Department of Education’s Office of Civil Rights from continuing its assault on students’ due process rights.”
There’s some words of encouragement there from a potential President Rubio, but the claim that CASA is “a starting point” still leaves me with a pit in my stomach. It is not “a starting point,” because it will never be fixed if passed. Politicians will pat themselves on the back for having done something, and won’t fix the numerous dangerous problems created by the bill.
Whenever someone mentions how unfair or unconstitutional college adjudication processes are, activists will be able to point to CASA and say “it’s the law.” And it will never be fixed. CASA needs to be scrapped so that it doesn’t destroy due process on college campus and ensure anyone accused has their life ruined without any evidence and without being able to defend themselves.
I know that if Rubio were to come out in favor of law enforcement involvement or due process rights he would be excoriated, as some activists groups are already doing to Sanders. But due process rights are in the Constitution, and everyone deserves them, whether they are accused on a college campus or not. The location of the crime should not determine it’s severity, and those privileged enough to go to our nation’s colleges and universities should not have a different justice system than the rest of us.
When these students leave college, they won’t be able to go to an administrator required to “listen and believe” when they want to accuse someone. There are some groups trying to make campus consent laws – which say alcohol (no need to prove how much was taken) negates consent and that sex must be performed as a question-and-answer session – become the law of the land for everyone in America. Since no one has sex this way, every person in the country who has ever had any kind of sexual activity (including holding hands or kissing) would be deemed a rapist overnight.
Rubio – and everyone else – needs to stand up to the activist bullies promoting these regulations and invasions into the bedroom. Rubio, I dare say, needs to follow Sanders’ lead.
Ashe Schow is a commentary writer for the Washington Examiner.
